COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
DARLENE SEKEREZ
MEMORANDUM OPINION *
v. Record No. 0372-98-4 PER CURIAM
DECEMBER 22, 1998
HERBERT F. BRAVO
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
William G. Plummer, Judge Designate
(Michael A. Ward; Gannon, Cottrell & Ward, on
briefs), for appellant.
(Daniel G. Dannenbaum; The Lewis Law Firm, on
brief), for appellee.
Darlene Sekerez (mother) appeals the decision of the circuit
court finding that the Virginia courts had jurisdiction to
determine the custody of the parties' child. Herbert F. Bravo
(father) filed an action in Virginia seeking custody shortly
after mother left Virginia with the infant. Mother subsequently
commenced an action in Indiana. Mother contends that the trial
court erred by (1) finding that Virginia was the only state with
jurisdiction to determine custody; (2) failing to make a
determination sua sponte that Virginia was an inconvenient forum;
and (3) ruling that visitation should be calculated based upon
father's twenty-eight-day work rotation. Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
the trial court. See Rule 5A:27.
Jurisdiction in Virginia
Mother contends that no evidence supported the trial court's
determination that Virginia was the only state where a custody
proceeding was pending and, therefore, was the only state with
jurisdiction to rule on custody. Evidence in the record,
including affidavits of the parties, supported the trial court's
determination that Virginia had jurisdiction to rule on custody
of the infant child. See Code § 20-126(A)(1)(ii). The parties
resided in Virginia at the time the child was born. The child's
connections with Indiana arose only through mother's unilateral
decision to return to her family home, taking the child with her
from Virginia. Virginia was the child's home state at the time
mother removed him from Virginia and father filed his custody
proceeding. See Code § 20-125 (defining "home state" as "in the
case of a child less than six months old the state in which the
child lived from birth with [his parents, a parent, a person
acting as parent]").
While "[s]ubject matter jurisdiction . . . cannot be waived
or conferred on the court by agreement of the parties," Morrison
v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755 (1990), and
may be raised at any time during the proceedings, it is clear
that the trial court had subject matter jurisdiction and that
mother conceded as much. In the proceeding before the circuit
court, mother's attorney stated:
Judge, I am here to tell you that after
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discussing the matter with my client, we are
prepared not to challenge the jurisdiction
and to have the matter resolved here.
Therefore, we find mother's first contention to be without merit.
Inconvenient Forum
Mother also assigns as error the trial court's failure, sua
sponte, to decline to rule on the grounds that Virginia was an
inconvenient forum to determine custody. See Code § 20-130. We
disagree. The child was born in Virginia. Father remained a
resident of Virginia. The parties' action for divorce was
proceeding in Virginia. Representations by mother in her
pleadings indicated that she was seeking to dismiss the Indiana
custody proceedings. Mother expressed her desire to "have the
matter resolved here." We find no error in the trial court's
failure to decline sua sponte to exercise its jurisdiction as an
inconvenient forum.
Determination of Visitation Period
Finally, mother contends that the trial court erred when it
ruled that a "month" for purposes of the parties' visitation
schedule would mean father's twenty-eight-day rotation period.
The authority vested in a trial court to
decide issues concerning the care, custody,
support and maintenance of the minor
children, the visitation rights of the
non-custodial parent, and the extent to which
those rights and responsibilities shall be
apportioned between estranged parents is a
matter of judicial discretion which courts
must exercise with the welfare of the
children as the paramount consideration.
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10,
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11 (1986). The trial court indicated that it considered the
statutory factors set out in Code § 20-124.3 when making its
decision. The evidence showed that father regularly worked three
consecutive weekends, with the fourth weekend off. Nothing in
the evidence which mother cites as supporting her assignment of
error refutes the trial court's determination. We find no error.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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